Free Proposed Order - District Court of California - California

Case 3:07-cv-04952-JSW

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Filed 12/26/2007

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SCOTT N. SCHOOLS (SCBN 9990) United States Attorney JOANN M. SWANSON (SBN 88143) Chief, Civil Division MICHAEL T. PYLE (SBN 172954) Assistant United States Attorney 450 Golden Gate Avenue, Box 36055 San Francisco, California 94102 Telephone: (415) 436-7322 Facsimile: (415) 436-6748 Email: [email protected] Attorneys for Defendant Dr. Donald C. Winter, Secretary of the Navy

UNITED STATES DISTRICT COURT 11 NORTHERN DISTRICT OF CALIFORNIA 12 SAN FRANCISCO DIVISION 13 14 15 16 17 18 19 20 21 22 Defendant Donald C. Winter's motion to dismiss for lack of subject matter jurisdiction 23 came on for hearing on February 15, 2008 at 9:00 a.m. before the Honorable Jeffrey S. White. 24 Having considered all papers filed in support of and in opposition to the motion, and having 25 heard oral argument, the Court hereby GRANTS Defendant's motion to dismiss on the ground 26 that this action was filed in violation of an order of the court dated March 26, 1999. In addition, 27 the Court hereby GRANTS Defendants' motion to dismiss on the alternative ground that the 28
[PROPOSED] ORDER GRANTING DEFENDANT W INTER'S MOTION TO DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION 1 Case No. C 07-4952 JSW

PAULINE HORVATH, Plaintiff, v. DONALD C. WINTER, Secretary of the Navy, Defendant.

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Case No. C 07-04952 JSW [PROPOSED] ORDER GRANTING DEFENDANT DONALD C. WINTER'S' MOTION TO DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION Date: February 15, 2008 Time: 9:00 a.m. Courtroom 2, 17th Floor Hon. Jeffrey S. White

Case 3:07-cv-04952-JSW

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Filed 12/26/2007

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court lacks subject matter jurisdiction over plaintiff's claims because plaintiff failed to timely exhaust her administrative remedies. Title VII required plaintiff to exhaust her administrative remedies as a statutory precondition to suit. Brown v. General Serv. Administration, 425 U.S. 820, 832-33, 96 S.Ct. 1961 (1976); Vinieratos v. Dept. of the Air Force, 939 F.2d 762, 767-68 (9th Cir. 1991). Plaintiff failed to timely exhaust her administrative remedies because she failed to initiate EEO contact within the required period, and thus these claims were properly dismissed by the EEOC on April 16, 2007, as untimely. A federal employee seeking to pursue a complaint of discrimination must to contact an EEO counselor "within 45 days of the matter alleged to be discriminatory, or in the case of a personnel action, within 45 days of the effective date of the action." 29 C.F.R. § 16104.105(a)(1). Failure to contact an EEO counselor within the time specified precludes a federal employee from pursuing her claim in federal court. Boyd v. U.S. Postal Service, 752 F.2d 410, 414-15 (9th Cir. 1985); see also Lyons v. England, 307 F.3d 1092, 1105 (failure to initiate timely EEO contact is "fatal to a federal employee's discrimination claim."). Plaintiff did not seek to file an EEO complaint until July 23, 1998, four years after she believed that she was discouraged her from filing EEO complaints, and nearly eight years after the latest non-selection for promotion of which she complains. IT IS SO ORDERED.

18 Dated: ________________________ 19 20 21 22 23 24 25 26 27 28
[PROPOSED] ORDER GRANTING DEFENDANT W INTER'S MOTION TO DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION Case No. C07-4952 JSW

______________________________________ Jeffrey S. White United States District Judge

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